Foreseeability in Construction

Transcription

1 Editorial Foreseeability in Construction Downloaded from ascelibrary.org by on 02/02/18. Copyright ASCE. For personal use only; all rights reserved. William Ibbs, M.ASCE Professor of Construction Management, Civil and Environmental Engineering, Univ. of California, Berkeley; and The Ibbs Consulting Group, Oakland, CA (corresponding author). Pirouzan Razavi, A.M.ASCE Civil and Environmental Engineering, Univ. of California, Berkeley, CA. DOI: /(ASCE)LA Introduction Foreseeability is critical to the construction industry and to the law as a whole, influencing decisions of a court when someone is negligent or when consequential damages occur as a result of breach of contract. When defining the term foreseeability, one must start with the standard definition. Black s Law Dictionary defines the legal term as a reasonable or likely consequence of an act. The Merriam- Webster dictionary indicates that there is a range in which foreseeability that which can be reasonably anticipated exists. In Figuring Foreseeability, David Owen states that although foreseeability is a critical legal concept, its intricacies make it complicated: :::while foreseeability may be the fundamental moral glue of tort, it provides so little decisional guidance that scholars often revile it for being vague, vacuous, and indeterminate (Owen 2009). In the construction industry, the definition of foreseeability extends to other legal concepts as well, including duty of care, breach of contract, factual causation, and proximate causation. Construction professionals can be held liable for damages caused during a project, delays that occur during a project, and loss of profits and wages that result from one or both of these problems. One of the most significant factors that plays a role in the outcome of such court cases is foreseeability: could the contractor foresee that potential damage was likely to occur? (Ibbs 2013) Should he or she reasonably have foreseen additional costs during that particular project? Throughout the history of foreseeability in the courts of the United States, the concept has taken on various meanings and resulted in some expected and some surprising outcomes. Foreseeability features prominently in international cases as well. This is particularly important in cumulative impact claims where contractors are often asked to waive their rights for claims on inefficiency, ripple effects, acceleration, etc. while signing change orders. The purpose of this paper is to provide an overview of 20 court cases that underscore the significance of foreseeability in the construction industry. For those entering the construction industry, and for those studying negligence law, these cases establish legal precedent and provide a foundation for future study. Although some of the cases may not directly involve construction, they are landmark cases that strongly influenced the other cases discussed. The paper is divided into sections that highlight key terms associated with foreseeability: breach of contract, proximate causation, and duty. Background Before addressing the cases and the legal concepts that are highlighted by them, a brief summary of the nature of foreseeability in the courts is necessary. A defendant can only be held responsible, or liable, for damages that the court finds reasonably foreseeable; an additional legal term here is not too remote, meaning that the damages are reasonably proximate to the triggering event and could have been reasonably foreseen by the average person. When a court considers damages that are not reasonably foreseeable, it takes on the role of the average reasonable who determines that the damages were impossible to foresee. This is known as the eggshell rule, which indicates that a defendant is liable for damages caused by his or her negligence, and a defendant takes a plaintiff as he finds him. Though not directly a construction industry case, 1975 s international R. v. Blaue is significant to include here in terms of understanding the nature of foreseeability. It is an important case, one that demonstrates what is often called the thin-skull rule. In this case, a woman was attacked by the defendant in her home after she refused him sexual intercourse. The defendant stabbed the woman and she was transported to the hospital under emergency care. In a unique twist, the woman was a Jehovah s Witness and refused a blood transfusion; as a result, she died. The defense argued that there was a break in the causation of the case; the woman died as a result of her refusing to have the operation rather than the defendant s stabbing. The defendant lost the case even though he did not foresee that the woman would have rejected treatment due to religious reasons; he was still responsible for her death, according to the court. From this foreseeability case comes the thin-skull rule : if I punch you in the face and you die because you have a very thin skull and my punch damaged your brain, I am responsible for your death even though I had no knowledge or no way of foreseeing that you had a thin skull. Again, though not a construction case, R. v. Blaue provides an important precedent in certain foreseeability cases that followed. Cases that involve foreseeability within the construction industry tend to also include other concepts, including unpaid impact costs, change orders, and delays. Because some of these conditions will appear in the cases discussed in this paper, 1983 s Pittman v. Thomas is instructive. In Pittman, a contractor sought compensation because of the changes that were made in the original project. The changes caused delays in the completion of the project; in turn, the delays caused errors in the project. In making its decision, the court had to consider the difference between direct and indirect costs. The court denied the contractor s claims, as the contractor was not able to prove that he was entitled to the indirect costs that incurred as a result of the delays. Moreover, it concluded that the contractor suffered no unforeseeable costs. Though the contractor did not win the case, the case remains significant because it demonstrated that cumulative impact costs could be recovered. Pittman connects foreseeability and cumulative impact in that the court determined that the losses the contractor was arguing for were foreseeable, and therefore he was not entitled to the claims that he made in court. In short: Defendant is only responsible, or liable, for damages the court finds reasonably foreseeable; Thin-skin rule provides pivotal background information to understand foreseeability; and Foreseeability cases will often involve other concepts, including delays, change orders, and unpaid impact costs. ASCE J. Leg. Aff. Dispute Resolut. Eng. Constr.

2 Foreseeability and Breach of Contract Breach of contract occurs in the construction industry when one party does not fulfill its contractual obligations. Foreseeability plays a role in breach of contract cases because such cases ask the court to determine the defendant s culpability the level of one s blameworthiness in the act of the offense and such a determination is often the foundation of negligence law. In breach of contract cases of which 1854 s Hadley v. Baxendale remains a hallmark the judge ascertains whether the defendant was required to meet a certain standard of care. In other words, depending on the situation, the defendant is under a duty of care and is expected to exercise that duty according to what any reasonable professional in that field would do. In Hadley v. Baxendale, an English contract law case, the plaintiff (Mr. Hadley) was a mill operator who had experienced damage to one of the mill shafts in his building. Hadley made arrangements to have a new mill shaft built by a company called W. Joyce and Co., but Hadley needed someone to deliver the broken mill shaft to the company for repair. Hadley contracted Baxendale, the defendant in the case, to take the broken part to the engineers. Hadley insisted that the shaft be brought to the engineer without delay. However, Baxendale not aware that Hadley s entire mill was shut down until the shaft could be replaced with a new model. Hadley argued that Baxendale was at fault; according to his claim, the five days that Hadley s mill was shut down lost him profits and wages, and Baxendale was in breach of contract for failing to deliver the broken part on time. The jury awarded Hadley compensation, but Baxendale appealed the ruling. Ultimately, the court s determination arose from Baxendale s breach of contract, but the court did not award Hadley for the profits and wages he lost during the five days that his mill was shut down. The court awarded Hadley 25 pounds, which was the reasonable amount for Hadley to receive for the breach of contract. The court did not award all Hadley asked for because there was no way for Baxendale to know (or foresee) that the mill would be shut down for five days due to his late delivery of the broken mill shaft. Hadley did not communicate this possibility to Baxendale, and Baxendale was never informed that the mill was shut down during the interim, thus making foreseeability the foundation for the entire case. Summarizing: Hadley v. Baxendale is a landmark foreseeability case; The case required that the court determine a defendant s culpability and the foreseeability of the events that occurred; and Baxendale was guilty of breach of contract, but the court s ruling was based on foreseeability that Baxendale could not possibly predict the events to occur. Another case of precedence, 1932 s Donoghue v. Stevenson, is an English tort law case out of Scotland that sets the stage for many breach-of-contract cases to come. Though not a case dealing with the construction industry specifically, Donoghue v. Stevenson remains the foundation for negligence cases. In the case, the plaintiff drank a bottle of ginger beer that had a dead snail in it. The plaintiff sued the manufacturer of the ginger beer for breach of contract. The argument was that it was reasonably foreseeable that if the manufacturer failed to safeguard its product, then the consumers of the product would fall ill or be caused harm in some way. The plaintiff was not successful in trying her case, but the case still set a precedent for manufacturers to be responsible for the products that they make and that those who consume them are owed a duty of care. This duty of care principle does not apply to the world in general, but only to one s neighbors. By neighbors, the law means only those people who are reasonably foreseeable to be impacted in some way by one s behavior or actions. Key points: Donoghue v. Stevenson is a landmark negligence case that used foreseeability to determine a manufacturer s duty of care; and Concept of foreseeability helped set a precedent that all manufacturers owe a duty of care to their customers. As stated previously, negligence cases such as these highlight what a reasonable professional would do under similar circumstances. When the court is asked to determine breach of contract, it must evaluate whether the defendant would have been able to reasonably foresee that his or her actions would result in damage to the plaintiff; in the case of Hadley v. Baxendale, the court established the principle that damages can be recovered only if, within the contract that the plaintiff and the defendant agreed to and signed, the defendant had the reasonable ability to foresee that consequential damages would cause a breach of contract. For example, imagine that a construction worker drives a large tractor to an isolated, rarely used part of a construction site and left it there. While exiting the tractor, the worker is hit by a four-wheel truck driven by another construction worker. Whether or not the plaintiff will have a successful case against the defendant will likely be determined by these factors: how reasonable it was to park the tractor in that part of the construction site; how probable it was for an accident to occur at that location of the site. The focus of the case, then, falls on the defendant s blameworthiness. We see this same issue factor into a case from the United States: 1884 s Pennypacker v. Jones. The plaintiffs were owners of a Philadelphia flour mill. They agreed to a contract with the defendants that required the defendants to make a high-grade flour; however, the contract stipulated that the work had to be done in a certain amount of time. Problems arose when machinery was faulty and failed to produce the grade of flour that the plaintiffs had required in the contract. The failure of the defendants machinery meant that the defendants breached their contract. The plaintiffs sought damages in the case for the loss of profits due to the machine s failure. The court determined that these damages were not reasonably foreseeable as the contract contained no language that indicated that the plaintiffs could possibly lose profits or wages as a result of a machinery failure. The court also ruled that there was no language in the contract that required the defendant s machinery to indirectly produce a certain amount of profits. Finally, the court agreed that damages should be rewarded as a result of the specific defect in the machinery, but that no damages should be awarded due to the speculations of lost profit. Lessons from this case include: Breach of contract a frequent contributor to foreseeability cases; and Pennypacker v. Jones highlights the importance of language in a contract; because the contract did not specify the foreseeability of profit loss, the plaintiffs lost a significant part of the case. In cases that concern negligence, the court must evaluate the defendant s behavior when compared with that of a reasonable person. This is seen in 1837 s Vaughan v. Menlove, an English tort law case that was the first to address this issue of a reasonable person. Menlove, the defendant, constructed a hay rick (a British term for a haystack) at the edge of his property. The hay rick was close to cottages owned by Vaughan, the plaintiff. Menlove was warned of the fire hazard and the potential damage that could be caused should the hay rick ignite. Unfortunately, he ignored these warnings and a fire erupted in the hay rick and damaged the plaintiff s cottages nearby. The plaintiff accused the defendant of negligence, attempting to hold the defendant responsible for foreseeable harm. The court ruled in favor of plaintiff, arguing that any reasonable person could have foreseen the damages that the fire could have caused. The court determined that Menlove was guilty of gross ASCE J. Leg. Aff. Dispute Resolut. Eng. Constr.

3 negligence because he been warned about the possibility of fire and he blatantly and willingly ignored those warnings. Vaughan v. Menlove remains a seminal case in the history of tort law because of the claims that the defense made in an attempt to win its case. The defense argued that Menlove was not bound to any duty to any standard of care; there was no contract, Vaughan and Menlove were not working for each other in any official capacity, and there was no legal bearing among the events that transpired. At the time there was no standard for such liability cases, and had Menlove won the case one might not ever have been established. However, as a result of the plaintiff s victory in the case, international and U.S. courts began to enact the reasonable person test in negligence and liability cases. As Owen tells us, all persons understand, at some level, that consequences outside the realm of their expectations sometimes do occur, and so at some level of abstract understanding they foresee the possibility of such unexpected results (Owen 2009). Foreseeability and Proximate Causation As demonstrated, there are many international and domestic court cases that deal with foreseeability, breach of contract, and the construction industry. Once the court determines that a defendant is in breach of contract, the court must also recognize a concept known as proximate cause. Proximate cause features in negligence law to limit the scope of a defendant s liability; a defendant cannot be held responsible for damages that could, logistically, last forever. Proximate cause, therefore, is employed by the court to determine the limit of a defendant s liability due to unforeseen consequences. Consider a construction example: a supervisor is using electrical equipment at a job site that results in a fire breaking out. The fire spreads and destroys a row of outbuildings on the perimeter of the site. The court determines that the supervisor operating the machinery was acting in a negligent manner, but proximate cause will serve to help the court determine if the supervisor will be held responsible for the damage done to the outbuildings. In this scenario, one could argue that proximate cause limits the supervisor s liability, for although it might be reasonable that a fire could start as a result of the electrical equipment, it is not necessarily reasonably foreseeable that all the outbuildings would also catch fire and be destroyed. Though the supervisor acted negligently in handling the equipment, those actions were not necessarily the proximate cause of the burning of the outbuildings. However, proximate cause does present some problems for a court trying to make a decision about a defendant. Various cases reveal that the defendants are not liable for damages that are too remote or speculative. Two that demonstrate this concept are Manufacturing Co. v. Clark and 1839 s Blanchard v. Ely. Both cases have to do with steamboats, but in different situations. The Clark case concerned the seizure of a steamboat. The court ruled that the only damages the plaintiffs were entitled to were those incurred by the actual seizure of the steamboat itself. The court stated that the plaintiffs should not be awarded any lost profits or wages that might have occurred had the steamboat not been held in detention. These profits or wages were too distant and speculative in other words, not reasonably foreseeable by a jury. In Blanchard v. Ely, the case concerned the cost of a steamboat. The defendants argued that some mechanical part of the steamboat was faulty or broken, and that the faulty machinery caused a delay. The defendants argued that had there not been these delays and had the steamboat been able to make its regular trips and deliveries, there would have been significant profit for the defendants. The court ruled against the defendants, instructing the jury to not include speculation about profits lost in its deliberation. It can therefore be concluded that proximate cause causes complications in court because remoteness of damages must be considered and is a factor in determining foreseeability. Though there are complications regarding proximate cause cases, it is almost impossible to deliberate such a case without taking into consideration the concept of foreseeability. However, the two concepts proximate cause and foreseeability work against each other to a certain degree. While foreseeability takes into consideration a general, expected outcome that a reasonable person would ascertain, proximate cause is much more narrowly focused on the specific conduct of a specific defendant under specific circumstances. Several cases related to the construction industry demonstrate this delicate balance, including 1966 s Wagon Mound case out of Australia and 1994 s Holcombe v. NationsBanc (Virginia). In the former case, the defendants acted out of negligence when they accidentally allowed an oil spill into the Sydney Harbor. Though the spill did not damage the plaintiff s ships in a significant way, the oil caught fire because of flammable waste in the water. It was this fire that destroyed the plaintiff s ships, and not the oil spill itself. The fire also damaged part of the harbor. Though the consequences of the oil spill were remote and speculative, the court needed to determine whether the defendants could be held liable. The court concluded that the operators of the Wagon Mound should have foreseen that an oil spill could potentially cause a fire; even though this possibility was highly remote, the possibility still existed and therefore the defendants were held accountable. Holcombe v. Nationsbanc also reflects proximate cause and foreseeability, yet in a much more direct way than the previous case. In this case, the plaintiff worked for a contractor. In construction cases, if a contractor expects to recover damages, he or she must be able to demonstrate to the court that any other reasonable and right-minded contractor would not have been able to predict or foresee that the damages would have occurred. In Holcombe v. Nationsbanc, the plaintiff s job was to clean the restrooms inside of a bank. While the plaintiff was working on the job, a partition fell on the plaintiff inside of the restroom. Though the partition had been in place for some time and there had not been any problems with the partition in the past, the manager of the bank knew that its position was unstable and that there was the possibility it could fall over. No precautions were put in place to ensure that the partition would not fall over. According to the case document, the partitions were resting against each other near the bathroom door. Although the defendant s branch manager was aware that the partitions might topple, no measures were taken to secure the partitions to prevent them from falling. However, they had not fallen during the several months they had been stored in the bathroom prior to the incident at issue in this case. While cleaning the bathroom in the evening when the bank was closed, the plaintiff was hurt when the partitions collapsed and hit her on the shoulder. The partitions fell with such force that they pinned the worker between the partitions and the toilet. During the trial, the plaintiff was asked why the partitions might have fallen and the plaintiff replied that she might have accidently brushed them with the vacuum she was using to clean the restroom. Ultimately, the court determined that the injury sustained by the plaintiff was a foreseeable injury. The defendant argued that the partition had been in the restroom for several months without incident, but the court did not believe that that fact detracted from the foreseeability of the injury. The court stated that a jury should be allowed to determine the defendant s negligence in the case. Thus: Proximate cause focuses on conduct of specific individual and whether that individual should have foreseen a particular outcome; and ASCE J. Leg. Aff. Dispute Resolut. Eng. Constr.

4 Wagon Mound and Holcombe v. Nationsbanc are key cases that connect proximate cause and foreseeability. Foreseeability and Duty In 1883 s Heaven v. Pender, a case out of England, a man who had been hired by a painting contractor had been injured when a stage collapsed because of faulty ropes provided by the owner of a dry dock company. There was no contract between the dry dock company and the painting contractor, but the dry dock owner was found negligent in the case; the court determined that he was in breach of his duty of care to provide reasonably safe materials and ropes that could hold up the staging. This case provides background into the concept of duty of care. In both American and international law, a defendant can only be found responsible for an unreasonable or foreseeable act if that defendant owed what is called a duty of care to the plaintiff. Another case that demonstrates the concept of duty of care in a fairly straightforward way is Sinclair Refining Co. v. Hamilton & Dotson, a U.S. case that occurred in Here, the plaintiffs rented a specialty garage from the Central Oil Company for a year at the charge of $100 per month. The plaintiffs intended to make money off of the venture, as they ran an auto garage and service station out of the garage. The defendants agreed to add a paint shop to the building, but the Central Oil Company sold the building while the plaintiffs were still renting it. Here results the crux of the case: the plaintiffs argued that due to the defendant s failure to erect the paint shop, the plaintiffs lost wages and profits; in other words, the plaintiffs argued that the defendants owed them a duty of care that is, a legal responsibility to avoid acts that can cause harm to someone else. In Sinclair the plaintiffs purchased tools for the paint shop that was never built; in addition, the plaintiffs claimed other expenses as well, all associated with the paint shop that was never built. The jury ruled in favor of the plaintiffs for the full amount they claimed in the case. Another case that clearly shows the impact of standard of care is 1991 s Blondel v. Hays out of Virginia. Although not a construction case, this wrongful death case provides the backbone of understanding duty of care and the concept s relevance to foreseeability in tort law. In this case, a woman and her baby died while the woman was in labor at a hospital. During the trial, the expert witnesses all disagreed as to what exactly caused the woman s death. The plaintiff argued that the defendant should have intervened sooner in the treatment of the woman, which would have saved the woman s life according to the plaintiff; the plaintiff argued that the defendant breached the applicable standard of care. The defendant, however, argued that the woman s condition and death were unforeseeable, and that the fatal toxin that caused the woman s death was entirely unknown. The jury returned a verdict in favor of the defendant. In more intricate construction cases, however, both duty and foreseeability can become complex issues when the government plays a role in making changes to a project. Changes to any construction project are expected and customary, yet they can result in unexpected costs, delays, and lost wages and profits. An international case from 2003, Berent v. Family Mosaic Housing and London Borough of Islington shows the connection between delays and foreseeability in a fairly linear way. In this case, the plaintiff sued for damages to her property as a result of three trees under the control of the defendant. The court determined that the plaintiff s advisors responded to her claims with delay, which resulted in the defendant not being aware of certain details of the case for quite some time. The court determined that the defendant could not have foreseen that the trees would cause damage to plaintiff s property. The logistics behind the Berent case remain straightforward, but a far more complex case from the United States complicates these issues and supports Owen s view that foreseeability is one of [tort law s] most vital moral tethers, yet irretrievably its most elusive (Owen 2009). The Wunderlich case from 1951 is a case from the United States that concerns key concepts relevant to this paper, including the impact of change orders on a construction project, delays on a construction project, and the problems these delays can cause for all parties involved, and foreseeability. First, some background into the nature of change orders is necessary to understand the layers of the Wunderlich case. Change orders occur when changes are made to an existing project; all those involved in the construction project should ensure that there are clauses in the contract that clarify any possible changes to the project and how these changes will be accounted for during the length of the project. Change orders can become complicated when there is no documentation prepared beforehand to handle these changes should they occur. Because change orders make the existing project different than the original plan, they often cause delays and added costs. That was the case in Wunderlich, a cumulative impact case that caused disputes when the change orders were not handled properly. The project concerned the construction of a large hospital the largest of its kind at the time. The government sanctioned many changes to an enormous project; as a result of these imposed changes, the contractor needed increased labor, material, and equipment. The court determined that the government s changes were acceptable under the law. The case is significant because the court denied the cumulative impact claims alleged to have arisen from the government s change orders. In Wunderlich, the government had a duty of care to the plaintiff in the case and yet the plaintiff s claims were denied, a direct contrast to a historical international case commonly known as the cart-before-the-horse case. In Illidge v. Goodwin, foreseeability and duty of care both played a critical role. Here, the defendant left his horse and cart unattended in the street. The horse and cart backed into plaintiff s china shop and broke a quantity of china, disrupting business and costing the plaintiff. Witnesses testified that the horse was struck by a person walking by. The court determined that the witness testimony did not amount to a defense; if the owner of the horse and cart leaves them unattended, he must take the risk of any mischief done. Unlike Wunderlich, the court ruled in favor of the plaintiff, arguing that the defendant should have foreseen that leaving his horse unattended could cause potential damage. Key lessons: Defendant can only be found responsible for an unreasonable or foreseeable act if that defendant owed what is called a duty of care to the plaintiff; Sinclair Refining Co. v. Hamilton & Dotson and Blondel v. Hays are two cases that show the concept of standard of care and its connection to foreseeability; Wunderlich case reveals the impact that change orders have on a case and whether or not changes in a case should have been foreseeable; and Illidge v. Goodwin links foreseeability with duty of care. Wunderlich presents a case about foreseeability and the standard of care in which the government s decisions won out in the end. However, not all cases involving government-sanctioned delays turn out the same way. In 1997, a construction case out of New Mexico, T. Brown Constructors Inc. v. Federico Pena, had a different outcome, supporting Owen s view that The slipperiness of foreseeability is evident from the myriad cases turning on its meaning and application (Owen 2009). In this case, Brown ASCE J. Leg. Aff. Dispute Resolut. Eng. Constr.

5 and the Federal Highway Administration entered into a contract. Brown was to perform construction work on a two-lane highway in New Mexico. Brown argued that he was entitled to additional compensation from changes to the project, delays to the project, and other tasks Brown had to complete on the project. In this case, the contractor and government were both responsible for the delays, and the court ordered that the costs of the delay be shared. In 1992 s Weaver-Bailey Contractors, Inc. v. United States, government-caused delays resulted in a winning verdict for the contractor in the case. The contract was for the construction of break waters, structures that are placed in water to protect against temperamental weather or moving sediments. In the project, the contractor was concerned about bad weather preventing the completion of the project by the due date, so he intentionally planned to complete the project earlier than the agreed-on end date. The errors in the government s designs for the projects caused a delay in the project and the contractor was unable to complete it by his intended timeline. The government declined to pay the contractor delay damages because the contractor never made his intended early complete date known to the government. The court held that the contractor could seek damages for government interference in an early completion project if the contractor s intended schedule was reasonable and if the contractor would have reasonably met this early completion date were it not for the government interference. The errors in the government s designs caused delays to the project that were unforeseeable by the contractor. Delays in projects can also cause plaintiffs to sue for loss of profits or wages, a fact that 1949 s Victoria Laundry Ltd. v. Newman Industries Ltd. demonstrates quite well. In this case, the defendant was to deliver a boiler to the plaintiff, a laundering company in Windsor. The boiler arrived five months late, depriving the plaintiff of a certain cleaning contract that would have earned the plaintiff a certain amount of wages. The plaintiff sued the defendant for these lost profits attributable to the late boiler. More significantly, the plaintiff sued for additional profits that he would have supposedly made through the cleaning contract. The court ruled only for the ordinary costs, not the extraordinary costs that the cleaning contract would have brought the plaintiff. The court also ruled that there was no way for the defendant to foresee this liability. Another case from England, 1967 s C Czarnikow Ltd. v. Koufos, also concerns a claimed loss of profits and issues of foreseeability. Here, the plaintiff was chartering a boat from the defendant that was transporting sugar. The boat was nine days late in its journey; in those nine days, the price of sugar had dropped and the plaintiff claimed loss of profit as a result of the delay. However, the defendant claimed that he did not know that the plaintiff would sell the sugar immediately and that the loss was too remote. The court ruled that it was foreseeable that sugar prices could fluctuate, and that the defendant was in breach of contract. Finally, in 1978 s English case Parsons (livestock) Ltd. v. Uttley Ingham and Co. Ltd., there is another instance of the tangled and often inconsistent web of foreseeability, what Owen refers to as the foreseeability paradox (Owen 2009). In this case, the plaintiff owned a pig farm; the plaintiff hired defendant to install large storage facilities for animal food, but, during installation, one of the storage facilities was not sealed correctly and some of the food began to rot. Many pigs ate the food and died as a result. The plaintiff sued defendant for damages for the loss of the pigs and for any profits lost as a result of their deaths. The court determined that the losses were not too remote and found in favor of the plaintiff. Summarizing: In some cases, both the contractor and the government are responsible for delays; Many cases reflect the harm that government-caused delays can have on a project, especially when delays were not foreseen by those who cause them; and Construction cases often link loss of profit with foreseeability. Conclusions and Recommendations As Owen explains in his article, :::foreseeability swirls throughout the law of tort, permeating, connecting and providing moral strengths to the elements of negligence (Owen 2009). Although legal disputes involving foreseeability and the construction industry are inevitable, there are some steps all parties can take to avoid the complications and conflicts demonstrated in this paper. Before the parties draw up, sign, and execute a contract, everyone involved should become directly familiar with the entire project, including its intended schedule, the ability of the contractors to meet that schedule and to successfully alter that schedule if necessary, and the possible delays involved in the project. The contractors, in particular, should insist upon a clause in the contract that enables them to claim damages in case of a delay in the project. In other words, the contract must be planned and worded exactly to the specifications of each interested party. Other factors that may contribute to the avoidance of going to court include a well-established work plan, a clear contract price, and a steadfast commitment to this plan. The cases discussed in this paper demonstrate that foreseeability within the law is an intricate concept that has varying outcomes both in and out of the construction industry. Owen consistently refers to foreseeability as an almost mysterious, ambiguous, and unpredictable entity, yet recognizes its importance to negligence law. Despite its most direct explanation an event is foreseeable if a reasonable person can predict or foresee the outcome the concept nonetheless complicates legal disputes. But foreseeability must remain a critical component of many court cases, as it unites issues of rationality, common sense, morality, and ethics, safety, and prudence. To conclude, those in the construction industry should focus on the following guidelines when faced with the concept of foreseeability in construction projects: The contract sould clearly state all the parties involved at every stage of the project; The contract should make clear the rights and responsibilities of all parties involved; It should determine resolutions for breach of the contract; The contract should make clear the resolution of conflicts and disputes; It should consider all foreseeable costs and fees, including costs of delays, change orders and attorney fees; and Parties should beware of possible consequential damages and foreseeable damages. References List of Cases Berent v. Family Mosaic Housing and London Borough of Islington, EWCA Civ 961 (2012) Blanchard v. Ely, 21 Wend. 342 (1839) Blondel v. Hays, 403 S.E.2d 340, VA (1991) C Czarnikow Ltd. v. Koufos, [1969] 1 AC 350, [1967] 3 WLR 1491, [1967] 3 All ER 686, [1976] 2 Lloyd s Rep 555 Donoghue v. Stevenson, [1931] UKHL 3, 1932 SC (HL) 31, [1932] UKHL 100, [1932] AC 562 ASCE J. Leg. Aff. Dispute Resolut. Eng. Constr.

6 Hadley v, Baxendale, [1854] EWHC J70, (1854) 156 ER 145, 9 ExCh 341, (1854) 23 LJ Ex 179, 18 Jur 358, [ ] All ER Rep 461 Heaven v. Pender, 11 QBD 503, 3 WLR 990, 2 Lloyd s Rep 522 (1883) Holcombe v. NationsBanc, 248 Va. 445, 450 S.E.2d 158 (1994) Illidge v. Goodwin, 5 C. & P Illinois Appellate Court (1887) Manufacturing Co. v, Clark, 32 Mo. 305 (1891) Overseas Tankship UK Ltd. v. The Miller Steamship Co (Wagon Mound), [1967] 1 AC 617, [1966] 3 WLR 498, [1966] 2 All ER 709 Parsons Ltd v. Uttley Ingham & Co Ltd. [1978] QB 791, [1977] 3 WLR 990, [1977] 2 Lloyd s Rep 522 Pennypacker v. Jones, 106 Pa. St. 237, 242 (1884) Pittman v. Thomas, 299 S.E.2d 207 (N.C. 1983) (1983) R. v. Blaue, [1975] 1 WLR 1411; [1975] 3 All ER 446; (1975) 61. Cr App R 271; [1975] Crimson Law Review 648; (1975) 119 SJ 589 (1975) Sinclair Refining Co. v. Hamilton & Dotson, 164, Va. 203, 211, 178 S.E. 777, 780 (1935) T. Brown Constructors v. Federico Pena, 132 F.3d 724 (Fed. Cir. 1997) United States v. Wunderlich, 342 U.S S. Ct. 154; 96 L. Ed. 113 (1951) Vaughan v. Menlove, 3 Bing NC 468, 132 ER 490 (CP) (1837) Victoria Laundry Ltd. v. Newman Industries Ltd., 2 KB 528 (1949) Weaver-Bailey Contractors, Inc. v. United States, No C., at 483 (Fed. Cl. Feb. 9, 1990) (1990) Works Cited Caine, C., and Thomas, H. R. (2013). Negligent tort liability of the design professional. J. Leg. Aff. Dispute Resolut. Eng. Constr., / (ASCE)LA , Cardi, J. W. (2005a). Purging foreseeability. Vanderbilt Law Rev., 58(3), Cardi, J. W. (2005b). Reconstructing foreseeability. Boston College Law Rev., 45(5), Golanski, A. (2011). A new look at duty in tort law: Foreseeability and related themes. Albany Law Rev., 75(1), Ibbs, W. (2013). Thinking about delay, disruption, and the cumulative impact of multiple changes. J. Leg. Aff. Dispute Resolut. Eng. Constr., /(ASCE)LA , Lagnado, D. A., and Channon, S. (2008). Judgments of cause and blame: The effects of intentionality and foreseeability. Cognition, 108(3), Maurer, D. D. (2011). Working with proximate cause: An elements approach. Army Lawyer, Owen, D. (2009). Figuring foreseeability. Wake Forest Law Rev., VerSteeg, R. (2011). Perspectives on foreseeability in the law of contracts and torts: The relationship between intervening causes and impossibility. Michigan State Law Rev., 33(4), ASCE J. Leg. Aff. Dispute Resolut. Eng. Constr.